New Whitewater counsel could face legal challenge

WASHINGTON -- In the wake of new questions about the naming of Kenneth Starr as the new Whitewater independent counsel, a lawyer for senior White House adviser George Stephanopoulos threatened yesterday to challenge Mr. Starr's appointment if the new counsel reopens parts of the investigation.

Mr. Starr was appointed last week by a three-judge panel headed by federal appeals Judge David B. Sentelle. Less than a month before the surprise appointment -- which has been controversial because of Mr. Starr's highly partisan Republican background -- Judge Sentelle met with conservative Republican Sens. Lauch Faircloth and Jesse Helms, both of North Carolina, who had been calling for the removal of former independent counsel Robert B. Fiske Jr., the Washington Post reported yesterday.

Judge Sentelle had also been lobbied by 10 conservative Republican congressmen, who wrote to the judge urging the replacement of Mr. Fiske.

Stanley Brand, the lawyer for Mr. Stephanopoulos, one of several top White House aides who had been subpoenaed by Mr. Fiske to testify in the "Washington phase" of his investigation, said in a telephone interview that he would look into the "legal and constitutional implications" of Judge Sentelle's meeting with the Republicans if Mr. Starr decides to re-examine issues involving his client.

"The whole reason for having an independent counsel is to depoliticize the appointment, take it out of the partisan realm," Mr. Brand said. "Now it looks like Republican senators were manipulating the independent counsel process at the time the [Whitewater] hearings were going on." Also yesterday, Democratic Sen. Carl Levin of Michigan, chairman of the subcommittee that oversees the independent counsel law, asked Judge Sentelle to reconsider the Starr appointment. In a letter, he asked the judge to rule on whether Mr. Starr's political activities create a conflict.

Mr. Fiske, who had finished most of the "Washington phase," concluded that questionable meetings between White House and Treasury officials regarding a federal probe of a failed Arkansas savings and loan with ties to the Clintons violated no legal standards. He also concluded that the death of deputy White House counsel Vincent W. Foster Jr. was a suicide, and unrelated to Whitewater.

Mr. Brand said he would take no action now, while Mr. Starr is reviewing Mr. Fiske's work.

Judge Sentelle and Mr. Faircloth said that nothing in their discussions pertained to Mr. Fiske or independent counsel matters.

But during the Senate hearings, Mr. Faircloth railed against Mr. Fiske's findings and suggested that the former independent counsel, appointed by Attorney General Janet Reno in January before the independent counsel law was renewed, had ties to former White House counsel Bernard Nussbaum that caused a conflict of interest.

After the independent counsel law was renewed last month, the three-judge panel headed by Judge Sentelle replaced Mr. Fiske, saying it was acting to avoid any appearance of a conflict since Mr. Fiske had been appointed by Ms. Reno.

But Mr. Starr's appointment set off a new round of partisan combat, especially since Mr. Starr, a former Reagan and Bush official, had recently spoken out publicly on the sexual harassment lawsuit against President Clinton. He opposed Mr. Clinton's contention that a sitting president is immune from lawsuits and agreed to donate his time to a conservative women's group and to write a friend-of-the-court brief.